The defense lawyers say that defendants faced with this choice “almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt,” meaning that defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and prosecutors “respect the boundaries of the law.”

Judges now spend most of their time in criminal cases hearing plea bargains “rather than evaluating the constitutional and legal aspects of the government’s case and police conduct,” NACDL says.

In federal cases, the defense lawyers maintain, “there is ample evidence” that defendants “are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk.” The pressure to plead guilty often is “accompanied by a requirement that accused persons waive many valuable rights, including the right to challenge unlawfully procured evidence and the right to appeal issues which have an impact not only in their cases but also for society at large,” NACDL says.

In a foreword to the report, former U.S. District Judge John Gleeson says that mandatory minimum sentencing laws have played an important role in reducing the trial rate in federal criminal cases from more than 20 percent thirty years ago to 3 percent today.

Neither government officials or the public have resisted the rise of plea bargaining, say the defense lawyers, who agree that “plea bargaining presents a seemingly reasonable alternative that promotes efficiency while providing defendants an opportunity for leniency and putting them on an early road to rehabilitation.”

A major problem is that pressures to plead guilty are “so strong [that] even innocent people can be convinced to plead guilty to crimes they did not commit,” says the NACDL report.

The defense lawyers maintain that the predominance of plea bargaining “is an unacceptable development.” The group says that, “The virtual elimination of the option of taking a case to trial has so thoroughly tipped the scales of justice against the accused that the danger of government overreach is ever-present.”

“For the defense attorney there is no more heartwrenching task [than] explaining to a client who very likely may be innocent that they must seriously consider pleading guilty or risk the utter devastation of the remainder of their life with incalculable impacts on family.”

NACDL offers a long list of recommendations, including eliminating mandatory minimum sentences, required plea-bargaining conferences “in every criminal case supervised by a judicial officer who is not presiding over the case unless the defendant, fully informed, waives the opportunity,” and “judicial ‘Second Looks’ in which courts would review lengthy sentences “to ensure that sentences are proportionate over time.”